Citation Nr: 18142848 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 14-20 106 DATE: October 17, 2018 ORDER Service connection for bilateral lower extremity cold injury residuals is denied. Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had any injuries of the bilateral lower extremities caused by cold exposure. 2. The Veteran’s death certificate lists the immediate causes of death as cardiac arrest. The underlying causes of death were atherosclerosis and diabetes. 3. Service connection was not in effect for any disabilities at the time of the Veteran’s death. 4. The Veteran’s cause of death was not incurred in or otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral lower extremity cold injury residuals have not been met. 38 U.S.C. §§ 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2017). 2. The criteria to establish service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from April 1946 to October 1947. He died in 2010. In October 2017, the Appellant was substituted in the appeal pending at the time of the Veteran’s death. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 decision of the Philadelphia, Pennsylvania, Regional Office (RO). In March 2013, the appellant had a hearing with a Decision Review Officer (DRO). In December 2014, the appellant was afforded a hearing before the undersigned Veterans Law Judge sitting at the VA Central Office. Transcripts of both hearings are in the record. Based on a heightened duty to assist claimants whose service personnel and medical records were destroyed and presumed missing due to the 1973 fire at the National Personnel Records Center (NPRC), the Board remanded the case in November 2017 for additional development. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for bilateral lower extremity cold injury residuals Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires (1) evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39 - 40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Appellant contends the Veteran had frostbite and cold injuries of the lower extremities due to his service in Alaska. At the March 2013 DRO hearing, the Appellant testified that the Veteran reported that he was ill-equipped for weather conditions in Alaska, which caused circulation problems with the Veteran’s legs. At the December 2014 Board hearing, the Appellant testified that the Veteran had night pains, tingling feet, brittle nails, and he could not withstand cold weather. She stated that when she met the Veteran in 1988, he had already been diagnosed with diabetes. She explained that in 2009, the Veteran was hospitalized for a leg amputation, but he remained hospitalized after surgery and died shortly thereafter in 2010. The preliminary question for the Board is whether, prior to his death, the Veteran had a disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a diagnosis of cold injury residuals of the bilateral lower extremities. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). As noted above, the Veteran’s service treatment records were lost in the 1973 fire at the NPRC. The record contains one separation examination from August 1947, which indicates the Veteran’s health was normal. VA medical records from April 1994 show the Veteran had diabetes. Private medical records from 2006 through 2009 fail to show the Veteran ever reported having or being treated for a cold injury. An intake form lists the Veteran’s medical problems as diabetes with onset in 1984, hypercholesterolemia onset in 1994, throat cancer onset in 1998, and coronary artery bypass grafting (CABG) in 2000. The Veteran was referred to a podiatrist, Dr. S. Remus, in October 2007. The Veteran reported having a history of diabetes and heart disease, and stated that his toenails were discolored and bothersome. However, he did not mention having any symptoms because of exposure to cold. Following a physical examination, Dr. Remus diagnosed bilateral onychomycosis, and diabetes mellitus with peripheral circulatory disorders. In May 2008, the Veteran complained of leg pain, but this was associated with insulin-dependent diabetes mellitus (IDDM). He again complained of bilateral leg pain in August and September of 2009, which his physician attributed to chronic peripheral vascular disease (PVD). In July 2009, the Veteran was treated for a left foot ulcer associated with acute renal failure and gangrene. The Veteran’s third and fourth toes of the left foot were amputated. Significantly, a summary of his medical history did not include any condition related to a cold injury, nor did his treating physician indicate the Veteran’s left foot condition was related to exposure to cold. In September 2009, it was noted the amputation sites were not healing well and there were gangrenous changes. Ultimately, the Veteran’s left foot was amputated in November 2009, he was hospitalized in December 2009 due to wound infection, and died soon thereafter. Dr. Remus submitted a letter in September 2013. He explained that he treated the Veteran from 2007 through 2009 for PVD with gangrene, and that in September 2009 the Veteran presented with gangrene of both feet, which led to the amputations of toes and eventually the left leg. Dr. Remus stated that based on data provided by the Appellant, he learned the Veteran was in Alaska for over one year, and was exposed to extreme cold. He explained that he researched the longterm effects of frostbite, and opined that to a reasonable degree of medical certainty, the Veteran’s circulatory and cardiovascular conditions that manifested in later years worsened due to his prior frostbite condition and exposure to cold temperatures, and this led to gangrene, infections, and amputations. However, the Board assigns little probative weight to the opinion from Dr. Remus. The Board has considered the loss of the Veteran’s records in the 1973 fire, and the Appellant’s attempts to additional medical records. However, the medical records that are available clearly document diabetes and PVD as the underlying cause of the Veteran’s leg condition. Dr. Remus diagnosed diabetes and peripheral circulatory disorders in his initial examination of the Veteran in October 2007, and included a detailed summary of the advice given to the Veteran regarding leg and foot care. At no point during the two years of treatment from Dr. Remus, or in the treatment notes from other private providers, was frostbite or exposure to cold ever mentioned as a potential cause of the deterioration of the Veteran’s bilateral lower extremities. Further, Dr. Remus fails to address the role of diabetes in relation to the Veteran’s legs in the opinion he submitted, nor does he reconcile the opinion with his own prior treatments notes. While the Appellant believes the Veteran experienced cold injury residuals, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). At the Board hearing, the Appellant’s representative noted that the Veteran’s service separation examination occurred during warmer weather, when the Veteran would not have been symptomatic. Following a thorough review of the medical records, there is no indication the Veteran reported any worsening or improvement associated with the weather regarding his leg pain. The Appellant also indicated brittle, discolored nails were a symptom of the Veteran’s cold injury residuals. However, treatment records show the Veteran was diagnosed with onychomycosis, a fungus of the nails. The opinion from Dr. Remus does not adequately establish that the Veteran had any injury due to cold exposure, as it is inconsistent with his own treatment notes. The Appellant has not offered any additional competent medical opinions in support of the claim. Consequently, the claim of service connection for bilateral lower extremity cold injury residuals is denied. 2. Entitlement to service connection for the cause of the Veteran's death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a). A principal cause of death is one in which a service-connected disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). A contributory cause of death is inherently one not related to the principal cause. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The Appellant contends the Veteran’s death was caused by cold injury residuals. The Board finds the preponderance of the evidence does not a support a finding of service connection for the Veteran’s death. The Veteran’s death certificate lists cardiac arrest as the cause of death. The underlying causes of death were atherosclerosis and diabetes. At the time of his death, the Veteran was not service connected for any disabilities. As discussed in detail above, the medical records do not support a finding that the Veteran had cold injury residuals to warrant service connection. Treatment notes show the Veteran had diabetes since 1984, and cardiovascular conditions since the 1990s. From 2006 until his death, the Veteran was frequently treated for these medical issues. A VA medical opinion was obtained in December 2013. After confirming the Veteran’s file was reviewed, the examiner opined that it was less likely than not that the Veteran’s death was caused by his service. The examiner explained that the Veteran had diabetes for 25 years, and atherosclerosis manifested itself as PVD and coronary artery disease severe enough to require CABG of three vessels. He stated these conditions are well known to produce cardiac arrest, and there is no evidence the Veteran had a frostbite injury while on active duty. Although the Appellant believes the Veteran’s death was caused by cold injury residuals incurred during service, her opinion as to service connection for cause of death is not probative. As a lay person, she lacks the necessary medical expertise to establish that the Veteran had a medical condition that was etiologically related to his service and death. See Layno, 6 Vet. at 469. The Veteran did not have any service-connected disabilities, and the VA examiner opined that the Veteran’s death was caused by non-service connected medical conditions. Thus, the claim for service connection for cause of death is denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel